The Court That Walks Off Cliffs

Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona—the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question.

Early indications are that the Roberts Court has seen the abyss, and it works. Its two most radical decisions, District of Columbia v. Heller and Citizens United v. Federal Election Commission, both represented quantum leaps toward writing the hard-right agenda into the Constitution. We’ll get another indication of how willing to jump the Court’s majority is, obviously, when the Court decides the mammoth health-care cases later this term. To reach the right’s favored result, it will have to (perhaps without admitting it) tear up a lot of recent doctrine, including Gonzales v. Raich, which allowed the federal government to apply the Controlled Substance Act to homegrown marijuana.

Another straw in the wind is this week’s cert. grant in Fisher v. University of Texas at Austin, which offers the new majority the chance to reverse the result of Grutter v. Bollinger. Grutter is the 2003 case in which Justice O’Connor purported to save affirmative action for the next 25 years or so. Chief Justice Roberts (who hates any race-conscious remedies, see his opinion in Parents Involved in Community Schools v. Seattle School District No. 1) certainly has the vote of O’Connor’s replacement, Samuel Alito (who viscerally hates affirmative action, see his concurrence in Ricci v. DeStefano). There’s little doubt about Justices Antonin Scalia and Clarence Thomas, and the likelihood that Justice Anthony Kennedy will pull an O’Connor and uphold the Texas program is faint. The only Equal Protection claims Kennedy has ever supported have been those of white people against programs that benefit non-whites.

All told, that’s five votes to reverse a clear precedent that’s less than a decade old. The only rationale for doing that, as many observers have noted, is that the former losing side now has the votes. If a Court reverses often on that basis alone, the abyss gazes into the Court.

Kennedy’s First Revenge: As I noted earlier, the Court has now invited cert. petitions in American Tradition Partnership v. Bullock, the Montana Supreme Court’s in-your-face defiance of Citizens United. In their opinion, the state Justices basically told the Court’s majority that tenderfoots don’t have a clue about life on the range; Westerners, with their vivid history of domination by mining and railroad barons, understand the danger of unlimited wealth in politics in a way that effete Easterners don’t.

How that slap must have grated Justice Anthony Kennedy, the current Court’s only Westerner, and also the author of Citizens United! Kennedy was born and raised in Sacramento, California, which may have some rudiments of high culture now but which was born in the rough-and-tumble of the Gold Rush. He must have yearned to slap those Montana Justices around and tell them that they are the ones who don’t understand Western history.

By a bizarre coincidence, Kennedy got to do just that on Wednesday, when he delivered the Court’s unanimous 25-page spanking to the Montana Supreme Court in PPL Montana LLC v. Montana, in which the Supreme Court held that Montana had not, as the state court held, acquired title to the riverbeds of the Missouri, Madison, and Clark Fork Rivers when Montana became a state in 1889. (Millions of dollars in payments from hydroelectric operators to the owner were at stake.) To explain just how wrong the Montana court was, Kennedy, like Charlie Wooster on Wagon Train, tells ‘em to pull up a rock and listen to a story that starts ‘bout 200 years ago, with two boys named Lewis and Clark and an Indian lady named Sacagawea. Twenty-five exhausting pages later, readers are in no doubt over who’s the authority on Western history. And that claim-jumpin’ State of Montana has been warned off the range in no uncertain terms.

More Good News for Gay Marriage Out of California: “If you don't like medicinal marijuana or gay marriage,” Rick Perry wrote in his soon-to-be-forgotten classic book, Fed Up! Our Fight to Save America from Washington, “don't move to California.” Perry seems to have this much right at least. It must be all that fluoride in the water; for the second time in a very short month, a California federal court has held that discriminating against same-sex couples in marriage and marriage benefits violates the Constitution. It was probably easy for anti-gay marriage folks to dismiss the outcome in Perry v. Brown, invalidating Proposition 8. That was the work of the feared judicial liberal Stephen Reinhardt. But woundingly enough, the opinion in Golinsky v. Office of Personnel Management is by District Judge Jeffery S. White, a George W. Bush nominee. Golinski strikes down § 3 of the federal Defense of Marriage Act, which instructs federal officials to interpret all federal statutes referencing marriage as referring only to “a legal union between one man and one woman as husband and wife,” and the word spouse as referring “only to a person of the opposite sex.”

Karen Golinski is an employee of the Ninth Circuit Court of Appeals. The Court’s chief judge, Reagan appointee Alex Kozinski, ordered the OPM to extend health benefits to Golinski’s legal spouse, Amy Cunninghis; the OPM, citing DOMA, refused. In holding § 3 unconstitutional, Judge White made two important points: first, that discrimination on the basis of sexual orientation is a “heightened scrutiny” classification, because gay men and lesbians are a minority with a history of persecution and limited access to political power. The Supreme Court has never held this, and Ninth Circuit precedent explicitly denied it. Judge White held that the lower-court precedent, which dated to the days before Lawrence v. Texas, was no longer good law.

Second, White cemented his opinion by also holding that the government’s proffered justifications for the statute—protection of traditional family and procreation, protection of traditional morality, and protection of traditional heterosexuality, and saving the government money—“cannot survive even rational basis review, the least searching form of constitutional scrutiny.” In essence, he said (as Reinhardt had said in Perry v. Brown), that § 3 doesn’t pass the most cursory smell test: the only real reason for its passage was prejudice against gays and lesbians.

As noted in this space earlier, Judge Reinhardt in Perry seemed to be writing for an audience of one: Justice Anthony M. Kennedy. Judge White seems to have Kennedy in mind as well when he discusses the issue of prejudice, or “animus.” Animus needn’t amount to open hatred, he wrote, and in support he quoted these words:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

The words were written in a concurrence to a case about the Americans With Disabilities Act. The author? By yet another bizarre coincidence, Anthony Kennedy.

Golinski concerned the federal portion of DOMA, and so the issue of the rights of states to enact their own laws allowing gay marriage (as my employer, the State of Maryland, did this week)—and have them respected by other states—was not directly before the Court. But Judge White noted the hypocrisy of all the blather about federalism by people who want to deny state-sanctioned marriages like Golinski’s the “full faith and credit” opposite sex marriages gain.

Should hypocrisy surprise us? Some years ago, that ardent state’s-righter, John Ashcroft, decided to shut down Oregon’s assisted suicide law by raw executive order. As I wrote at that time, the entire field of federalism is suffused with hypocrisy. Rick Santorum, who is kind of a miner’s canary of right-wing extremism, recently explained, “I’m a very strong supporter of the 10th amendment.” However, he added, “Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong.” On the other hand, Santorum recently said, states do have the legitimate power to outlaw all forms of contraception.

Did Chief Justice Roberts change his mind about the Affordable Care Act at the last minute? Whatever happened, it's going to be a long time before we find out.

About the Author

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.com. His book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.